Arrested Development Documentary Has To Hit Up Kickstarter Because Fox Claims Copyright On Set Photos

from the wtf dept

Just a few weeks ago, we had a story about how an awesome looking documentary about comic artists needed to hit up Kickstarter to raise more money solely to purchase licenses to some of the artwork & video clips in the film. Most of the copyright holders let them use the work for free, but a few were demanding payment -- often thousands of dollars for a single image or short clip. As we've noted, documentary filmmakers are scared to death of relying on fair use, because they don't want to get sued (and some insurance providers won't give you insurance if you plan to rely on fair use).

And, now, there's an even crazier example. Two huge fans of the cult favorite TV show, Arrested Development have made a documentary about the show, talking to a ton of people who created and acted in the show, as well as to a bunch of fans. Given that a new season (via Netflix) is quickly approaching, getting this documentary out would make sense. The film is finished according to the filmmakers. Done done done. So why are they asking Kickstarter for $20,053? Yup, you guessed it. Copyright licensing issues. And this time, it's really crazy:

After five years, we're finally close to releasing the documentary. Our final step is to pay the network for photos from the set of the show. These photos are extremely relevant to the story, and we can't move forward with the release of the documentary until our fees are paid to the network. This is where you come in. Help us pay the network fees so every Arrested fan can see this documentary!

Yes, photos from the set. And, "the network" in this case is 20th Century Fox. This seemed so ridiculous to me that I asked the filmmakers, Jeff Smith & Neil Lieberman, for the details, and they said that these are photos taken by a variety of people on set and that the people who took the photos gave them to Jeff & Neil willingly, but that "the network is claiming copyright." Just to be clear, Jeff & Neil don't have a problem with this, saying that they believe that this is "within the network's rights" to make that claim and they emphasized that Fox was giving them a "deep discount on the photos" and that it "could have been much worse" otherwise.

While it's great that the filmmakers are fine with this, it still seems quite troubling to me. Whoever took the photos in the first place would own the copyright on the basic photos themselves. This implies that Fox is claiming copyright on the set itself, which appears in the images (or, they're lying and claiming copyright on something they have no copyright on). And, yes, they could potentially claim copyright on the set -- but that doesn't make this any less crazy. Jeff & Neil would have a massively clear fair use argument if they were challenged on using these images. It is not as if the use of those images would somehow harm the "market" for "the set" itself (which is about all the network could possibly be claiming copyright on). It would obviously be a transformative use, and they'd just be displaying parts of the set. This is about as open and shut a fair use case as you could possibly imagine.

And, really, this is doubly ridiculous, because this documentary is only going to help promote the show more, not harm it in any way... oh wait. Fox no longer benefits from that because Fox cancelled the show and the new season is happening on Netflix instead... Perhaps that's what this is about. The cash from this Kickstarter could have gone into all sorts of actually useful things, including more marketing and promotions for the documentary (which does look great). But, instead, it's going into Fox's bank account, because Rupert Murdoch needs it more than two independent documentary filmmakers who were huge fans of the show. I thought copyright was supposed to be about helping filmmakers, not forcing them to waste $20,000+ dollars on a bogus copyright claim..

This doesn't seem right. Crew deal memos all prohibit on set photography of any kind. The still photographer works for the distributor (Fox) not the production company. If the photos are frames captured from the moving picture images, that would be property of the production company or Fox.

Re: Sugar Daddy

Re: Re: Sugar Daddy

No need, they're already 150% funded. Predictably, most funding comes from people at level wanting a copy of the documentary rather than higher rewards, suggesting that most might just be people who wanted the doc and wished to see it released. That raises the question about how many of the profits from the venture are merely being robbed to pay for something that should have been an unnecessary cost, but at least it's going to see the light of day.

This isn't actually new, it's just now public.

But here, TWICE in a row, I can largely agree with Mike that it's CRIMINAL to suppose that "Rupert Murdoch needs it more than two independent documentary filmmakers". -- See, it's all a matter of FOCUS. If Mike keeps on the Populist slant of stating to hell with the supposed economic "rights" of billionaires to get richer, then my work here is done.

Now, Economist Mike can go on to advocating some positive actions to take rather than just merely putting it out, such as means tests for copyright: it should lapse totally after the creators (or rather, vast corporations) get to well above sustaining level and don't have ANY need for the gov't protect them against, er, misappropriation.

Re: This isn't actually new, it's just now public.

Re: This isn't actually new, it's just now public.

Blue...while I can see somewhat of a good idea buried in your most recent posts, the problem is they're buried underneath the attacks you aim at Mike. It undermines what you're saying when you both attack him, and agree (more or less) with what he's saying in the same comment.

Although I do have to ask: what does "well above sustaining level" mean? How would you measure it?

Re: This isn't actually new, it's just now public.

Maybe, Maebe

"Whoever took the photos in the first place would own the copyright on the basic photos themselves.

... unless they were a "work made for hire". Which is common enough in a situation like this... otherwise you need to pay the photographer, who's already been paid for the day, every time you use an image.

Re:

That is not enough to get through the first court case, never mind the appeals that are sure to follow. Further the film would be on hold for years while the case wound its way through the system.
The studios and other copyright holders are quite adept a pricing 'licenses so that it is cheaper to settle that try and fight the case.

Where does insane BS go in the budget?

Would YOU have thought to budget for such a thing. I am not sure I would have and I am pretty cynical. There is always some other form of bullsh*t. This is what modern copyright has become. It's a roadblock for small artists.

So why are they asking Kickstarter for $20,053? Yup, you guessed it. Copyright licensing issues.

LOL! Way to jump straight to the anti-copyright FUD. Nowhere in the Kickstarter page do they say these are COPYRIGHT licenses. They say: "Help us pay the network fees so every Arrested fan can see this documentary!" Mike, OF COURSE, just jumped to the conclusion that it was big, bad, EVIL copyright to blame for this terrible thwarting of artistic talent. OMG! Copyright! But, no, it's just a contract issue. Great job, FUD Boy. I know you have no journalistic integrity--or any integrity at all, for that matter--but sheesh. A little background work before jumping to the FUD would be appreciated. LMAO @ FUD-packer Mike. What a douche.

Re: Re:

These guys don't even read beyond the title any more, it seems. They just cut and paste whatever impotent rant they have prepared, changing a few details to match whatever they imagine the argument in the headline to be.

re: fair use market analysis

Fair use analysis of the relevant market would also include derivative works, so saying that there's no harm to the "market" for "the set" itself is examining too restrictive a market. There is a commercial market for photos of the set (a derivative work); think of a 'behind the scenes' book or something else geared towards fans.

Also, the transformative aspects are limited too. It's not particularly transformative of the original work (the set) to take a still picture and drop it into a video.

While there's still a decent case for fair use, this doesn't fall into one of the bright line examples.

Re: re: fair use market analysis

What if some network went interview people in the set. Would you say they should pay for exposing the set in the background? What's the difference?

I think it's a bright example. The problem is that they have to go trough a lawsuit that is insanely expensive and economically stacked in favor of the deep pockets.

I'm thinking that maybe adding a threshold where lawsuits started by people or corporations with more than X times the amount of capital than the defending part would prompt the defending party to receive full public funding to hire whoever they wanted. If the ones suing lost the cause they'd have to pay everything. Food for thought.

Re: Re: re: fair use market analysis

What if some network went interview people in the set. Would you say they should pay for exposing the set in the background? What's the difference?

The difference is that the network would be there taping with the permission of the producer for the sole purpose of a news story. But that seldom happens, sets are generally off limits to press. Sometimes they bring in an EPK crew, but they're hired directly by production.

Re: re: fair use market analysis

There is a commercial market for photos of the set (a derivative work); think of a 'behind the scenes' book or something else geared towards fans.

You would have to then analyze whether the set photos in the documentary would be a good substitute for the set photos in the book. If someone wants to get photos of the set of Arrested Development, would the availability of this movie make them substantially less likely to buy the book?

That's ignoring the issue of whether a set can be copyrighted, which to me sounds completely ridiculous. But of course until someone spends millions of dollars to pursue it, we won't know.

Re: Re: re: fair use market analysis

That's ignoring the issue of whether a set can be copyrighted, which to me sounds completely ridiculous.

The set definitely can be copyrighted, at least certain aspects of it. There were creative and aesthetic design decisions that went into the set that have some measure of copyright protection. Remember, a photograph of nature has a copyright, and that's when the 'set' wasn't even designed by humans. The functional part of the set (e.g., the lack of ceilings or a 4th wall to allow for camera/lights/etc. don't qualify for protection, but there are purely creative choices that have some level of copyright coverage. Probably not very strong protection but still something.

Re: Re: Re: re: fair use market analysis

Remember, a photograph of nature has a copyright, and that's when the 'set' wasn't even designed by humans.

A *photograph* of a set can absolutely be copyrighted, but the set itself? You may very well be right but I hope not. That would mean one show could sue a later show because their sets incorporated copyrighted elements from the first show's sets. And you know they wouldn't limit themselves to reasonable claims either.

Re: Re: Re: re: fair use market analysis

The set definitely can be copyrighted, at least certain aspects of it. There were creative and aesthetic design decisions that went into the set that have some measure of copyright protection. Remember, a photograph of nature has a copyright, and that's when the 'set' wasn't even designed by humans. The functional part of the set (e.g., the lack of ceilings or a 4th wall to allow for camera/lights/etc. don't qualify for protection, but there are purely creative choices that have some level of copyright coverage. Probably not very strong protection but still something.

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

I'm not sure a set qualifies as a copyright-eligible work. Certainly individual set pieces may have a copyright if they quality as a "pictorial, graphic, [or] sculptural [work]," but a set (1) is not fixed and (2) is not in any of the above 8 categories.

Re: Re: Re: Re: re: fair use market analysis

17 USC 101: Definitions:

“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art....

I'm pretty sure the set would fall into the pictoral, graphic, and sculptural works. It's a functional piece of art (and the functional aspects cannot be copyrighted), but there are strictly aesthetic aspects that can be protected.

You're also mis-interpreting what "fixed" means in terms of copyright- think "tangible" rather than "immutable". Fixed is really in contrast to ephemeral or abstract- if I make a song in my head, that's not fixed. If I sing that song in the shower, that's not fixed. If I record my singing onto a CD, then I fixed and created a phonographic work. For a set, a design in the producer's head is not fixed; the actually built set is "fixed" and is a work. If they rearrange the set, then they have created another (derivative) work.

What I think is leading people astray is that a) the threshold to obtain a copyright are really very minimal, but b) just because you have a copyright, doesn't mean you have a lot of protection. For a functional work of art, like a stage set, most aspects of the set will not have copyright protection because of purely functional or scenes-a-faire reasons. However, the purely aesthetic aspects are protectable. These parts are easy to get around if you're building your own stage set because your own aesthetic choices really make those unlikely to be copied, but if you're taking a photograph, then those aesthetic aspects will be embodied, verbatim, onto the derivative work, and you have a copyright problem.

Also remember that courts have been treating fair use as an affirmative defense. Under that reasoning, the analysis isn't 'the work does not have a copyright'; it is 'the work has a copyright, but your unauthorized use of the work is excused'.

Fox actually still owns AD

While Netflix has licensed the new episodes, Fox still technically owns the rights to Arrested Development. There have been many statements by Mitch Hurwitz and cast members stating the same. It even may end up on iTunes after, something Netflix wouldn't want to see.

Works for Hire

As upsetting as this is, I think it's highly likely that Fox *does* own the copyright in question. Anyone with access to set would have signed a deal memo assigning all copyright for anything related to the set to the production company. That's routine, and it's in every deal memo I've signed for any TV show.

More than likely, the photos didn't just come from random crew members, but from the official stills photographer, who would also have an explicit contract assigning copyright to the production company (Fox). This is true with or without work for hire concepts; the copyright assignment is a standard part of the employment contract.

So, it's incorrect for Mike to call this bogus or copyfraud. They are not claiming copyright over the set itself; they are claiming copyright on the photos which would have been assigned to them by contract as a routine part of producing the series.

There's no question in my mind that this *should* be fair use, and in an ideal world the lawsuit would be frivolous. However, we don't live in that world, and I have no doubt that the law in this case will favour Fox.

Re: Works for Hire

I think you are mostly right. It sounds like they may have seen some stills and asked to use them. Fox probably said, "Sure, that'll be 20 grand". Fair use would be if the photos had been published somewhere and Fox asserted a copyright claim. As usual, the sloppy 'reporting' around here raises more questions than it answers. I'm very skeptical that copyright is an issue at all.

Re: Re: Works for Hire

a) It doesn't matter, if you are using it to inform or transform it is fair use no matter where the source is.

b) Even if by some miracle this is not fair use, it should be, since talking about what others did in no way shape or form is copying, distributing or interfering with the commercial interests of others.

Re: Re: Re: Works for Hire

@ #42:
a. "if you are using it to inform or transform it is fair use": Absolutely wrong. Almost anything short of direct copying has at least a minimal transformative aspect, so that can't be the threshold for fair use. The current fair use test has 4 factors, and "purpose and character" of the use is only one factor. "To inform" is also not sufficient. If someone wanted "to inform" the world on how great/bad Harry Potter is, replicating the whole series verbatim is not fair use.

b. The studio has a commercial interest. Suppose they or someone else wanted to produce an "official" Arrested Development documentary or behind the scenes book. Photos of the actual set enhance the value of the new work and increase its commercial value. There is a market for derivative works, and commercial impact is another fair use factor.

I think it would ultimately be considered fair use, but that conclusion shouldn't be reached by blithely discounting the counterarguments.

Re: Re: Works for Hire

One thing that always makes me laugh on Techdirt - when someone makes an essentially anonymous comment, with no facts whatsoever, with no purpose other than to attack the author of an article for hiding the facts. An attack on the substance of an article, while offering neither substance of your own nor any reason to doubt what's been said unless parroting the person above them. My favourite kind of idiot.

Re: Works for Hire

"More than likely, the photos didn't just come from random crew members, but from the official stills photographer"

That's quite possible, but that's not what's said in the information available. So, you have your assumption, others have theirs. I'm sure the article will be corrected if you have an alternative source that backs you up.

As for the rest of your comment, I agree. It's a shame that this kind of thing needs to happen, but that's why it's so great that platforms like Kickstarter exist in order to help the independent film-makers out in areas where traditional funding and insurance may not.

Re: Re: Works for Hire

I don't work in Hollywood, but I'd think all the cast members (and I'd guess crew) would sign IP agreements assigning all the IP work they're creating to the studio.

In this case, it seems to me, the issue isn't that it was taken on Fox's stage - it's that it was taken by people doing work for hire for Fox, and that Fox owns all the IP they created while doing that work, even if it was taken with a personal camera.

A ludicrous thought experiment - if a door was open on the set, and one of these employees was able to - on the clock - walk across the street, off Fox property, and take a picture of the set through the door, it would still belong to Fox.

However, the same picture, taken by a passerby, would not be owned by Fox, because that person wouldn't have an IP agreement with Fox.

Re:

I totally agree. Kickstarter is for starting projects that have significant public value, not for begging to finish projects. I would pay for a Kickstarter to finance a fair use test case, not for throwing money into the maximalists' greedy maw.

Documentary Filmmakers regularly employ fair use without trouble

I'm not sure why the makers decided they needed to clear the work, but in many circumstances (fair use being case-by-case) documentary filmmakers find it unexceptional and routine to quote copyrighted work without clearing in their productions. They do so consulting the Documentary Filmmakers' Statement of Best Practices in Fair Use (centerforsocialmedia.org/fair-use) and they get errors and omissions insurance, typically without incremental charges. Every E&O provider for docs in the US offers fair use coverage, with a lawyer's letter attesting to conformity of fair uses with the Statement.